An Illinois appellate court recently reversed the entry of a directed verdict for a defendant in a medical malpractice action, despite acknowledging that the court’s decision may be “in tension” with prior decisions favoring defendants.   In Hemminger v. LeMay, 2014 IL App (3d) 120392, plaintiff Daniel Hemminger sued defendants Dr. Jeffrey LeMay and Sterling Rock Falls Clinic, Ltd., seeking damages for the death of his wife, Tina.  Hemminger alleged that the defendants’ negligent failure to diagnose Tina’s cervical cancer in a timely fashion proximately caused her death by lessening her chance of survival.

Tina saw Dr. LeMay, an obstetrician/gynecologist, complaining of abdominal pain in June 2000.  Dr. LeMay performed a pelvic examination which showed that Tina’s cervix was abnormally large and firm, but did not biopsy Tina’s cervix or order a microscopic examination of her cervix at that time.  Tina was diagnosed with cervical cancer six months later and died in April 2002.  Hemminger proceeded against the defendants under the “lost chance” theory of recovery, which refers to evidence that a defendant’s negligence increased the risk of harm to a plaintiff or lessened the effectiveness of a plaintiff’s treatment.  Hemminger’s expert obstetrician/gynecologist (who was not an oncologist) testified that Tina’s chance of survival would have been 80-90% if Dr. LeMay would have diagnosed Tina’s cancer in June 2000.  The expert testified that the six month delay in diagnosis decreased Tina’s chance of survival to 32%.  The expert, however, was not able to testify what would have happened to Tina’s chance of survival had she received certain treatment and merely testified that the earlier diagnosis occurs, the better the chances of survival.  No connection was made between that general rule and Tina’s specific circumstances.   The defendants moved for a directed verdict, arguing that Hemminger failed to meet his burden of proving proximate causation by establishing that the defendants’ negligence lessened Tina’s chance of survival. The trial court granted the motion finding that Hemminger’s expert offered only generalized evidence based upon cancer survival rates and a general opinion that an earlier diagnosis leads to better results.

On appeal, the appellate court reversed the entry of a directed verdict for the defendants.   The appellate court disagreed with the defendants’ argument that Hemminger’s causation evidence was speculative and inadequate because Hemminger’s expert was unable to opine that the outcome in Tina’s specific case would have been different with earlier treatment. The court found it sufficient that Hemminger’s expert opined that Dr. LeMay’s negligent failure to diagnose Tina’s cervical cancer in June 2000 caused Tina’s chances of survival to decrease.    In a departure from Illinois law, the court found that Hemminger was not required to show that Dr. LeMay’s negligence actually deprived Tina of a better outcome, but only that Dr. LeMay’s negligence increased a risk of harm or a lost chance of recovery, i.e., that Dr. LeMay’s negligence deprived Tina of the opportunity to undergo treatment that could have been more effective if given earlier, regardless whether there was any evidence that such treatment would have actually been effective. The court acknowledged that its decision may have been “in tension” with prior decisions favoring the defendant, but declined to follow those prior decisions.

In a recent decision by the Illinois Appellate Court, Third District, the court overturned a jury verdict for the defendant in a medical malpractice case.  The plaintiff alleged that the defendant radiologist failed to timely diagnose her breast cancer.  At trial, the defendant radiologist testified using a PowerPoint presentation containing images of benign tumors from a medical treatise alongside radiological images taken from the plaintiff.  Above the treatise images were headings such as “benign cysts” and “infiltrating ductal carcinoma.”  The plaintiff objected to the use of the PowerPoint exhibit.  The defense argued that the purpose of the exhibit was to educate the jury about complex medical testimony that was being offered by the defendant regarding the characteristics necessary for evaluating breast lesions.  The trial court allowed the defendant to use the PowerPoint exhibit over the plaintiff’s objections.  The jury returned a verdict in favor of the defendant.  The plaintiff filed post-trial motions for a judgment notwithstanding the verdict, for a new trial, and for a rehearing, all of which were denied by the trial court.  The plaintiff appealed.

On appeal, the plaintiff argued, among other things, that the trial court erred in allowing the defendant to use the PowerPoint exhibit as demonstrative evidence.  The plaintiff argued that the defendant failed to lay the necessary foundation for the ultrasound images in the PowerPoint exhibit, the exhibit was not timely disclosed to plaintiff as required by the Illinois Supreme Court Rules, the exhibit was not actually being used as demonstrative evidence but to corroborate the defendant radiologist’s medical opinion that he correctly diagnosed the plaintiff’s lesions as benign and that the use of the PowerPoint exhibit was highly prejudicial.  The appellate court agreed that the trial court committed reversible error in allowing the defendant to use the PowerPoint exhibit as demonstrative evidence during his testimony at trial.

The appellate court began its analysis regarding the use of the PowerPoint exhibit by noting that PowerPoint presentations are commonly used in trial courts when the proper steps have been taken for their use as demonstrative evidence.  Demonstrative evidence generally has no probative value and is merely used as a visual aid to the trier of fact.  The value of demonstrative evidence lies in the trier of fact being able to understand what is seen rather than what is being heard.  Demonstrative evidence may be used to illustrate the verbal testimony of a witness on a matter that is relevant in the case.  The demonstrative evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.  Demonstrative evidence should only be used when a proper foundation for use of the evidence has been established.  The party seeking to use demonstrative evidence must establish that a witness has personal knowledge of the object depicted in the demonstrative or that it is an accurate portrayal of what it purports to show.  Absent a foundation the demonstrative evidence may not be presented at trial.

In finding that the trial court erred in allowed the PowerPoint exhibit, the appellate court reasoned that the PowerPoint exhibit went well beyond merely trying to educate the jury about the evaluative characteristics a radiologist uses to evaluate breast lesions.  The treatise images and diagrams contained in the PowerPoint were used to help show the basis for the defendant radiologist’s medical opinion.  The appellate court further explained that even if the PowerPoint could be considered demonstrative evidence, the defendant failed to lay a proper foundation for its use at trial.  It was never established that the images taken from the treatise were from a reliable authority that could be used as a basis for an expert opinion under Illinois Rule of Evidence 703.  Illinois Rule of Evidence 703 allows an expert to testify about facts or data upon which he or she bases an opinion if those facts or data are of the type that is reasonably relied upon by experts in that particular field in forming opinions on the subject even if those facts or data are not admissible in evidence.  The appellate court explained that because a proper foundation was not laid to show that the images contained in the PowerPoint exhibit were of the type reasonably relied upon by experts in the field of radiology, the trial court erred in allowing the defense to use the PowerPoint exhibit.  The use of the images in the PowerPoint exhibit to show the basis of the defendant radiologist’s medical opinion was highly prejudicial because its use went to the heart of the malpractice claim.  The appellate court reversed the judgment of the trial court and remanded the case for a new trial.

Summary Judgment under the De Minimis Rule Held Appropriate in Slip-and-Fall Action

In a recent Second District Appellate Court decision, the Court affirmed the trial court’s summary judgment for the defendant in a slip-and-fall negligence action.  The plaintiff had alleged that he was injured when he tripped and fell on an uneven portion of the sidewalk outside a hotel owned by the defendant.  The defendant had moved for summary judgment, arguing that it did not owe plaintiff a duty of care, because the defect in the sidewalk was de minimis.  The trial court granted the defendant’s motion for summary judgment, finding that the defect in the sidewalk was de minimis as a matter of law.  The plaintiff appealed.

The plaintiff had claimed that he had tripped over uneven slabs of concrete a few feet away from one of the doors at the main entrance of the hotel at approximately 9:00 p.m.  Although the plaintiff alleged that the area had poor lighting, he did not make any other allegations about the area where he fell or describe how much foot traffic was present at the time of his fall.  Importantly, the plaintiff had not alleged that he had no choice but to enter or exit through one set of doors, that he was otherwise distracted, or that there was heavy congestion or foot traffic at the time of his fall.  It was undisputed that the height variation between the slabs of concrete was less than two inches.

The appellate court began its analysis by noting that a premises owner is not an absolute insurer of the safety of an invitee; instead the premises owner’s duty is that of reasonable care under the circumstances.  The de minimis rule originated in cases involving municipalities, where it was noted that although a municipality has a duty to keep its property in a reasonably safe condition, it has not duty to repair de minimis defects in its sidewalks.  The Second District has extended the de minimis rule to apply to private owners and possessors of land.

Although the appellate court noted that the de minimis rule cannot be applied blindly in every situation, it is nevertheless “well established” that, absent any aggravating factors, a “vertical displacement” between sidewalk slabs of less than two inches is de minimis.  Perhaps the Court’s decision was influenced, at least in part, by Chicago’s particularly hard winter as it noted that “[g]iven the extreme and various weather conditions in Illinois, slight variations in sidewalk elevations are to be expected, and sidewalks cannot be perfectly maintained at all times.”  Sidewalks are constructed in slabs for the very reason that they must be allowed to expand and contract with changes in temperature.

The Martin Court listed certain aggravating circumstances that may prevent the application of the de minimis rule.  Such aggravating circumstances may include evidence of heavy foot traffic, distraction, or congestion.  For example, in a busy commercial district it is reasonable to infer that a pedestrian could be sufficiently distracted to overlook an otherwise de minimis defect in the sidewalk.  Similarly, the de minimis rule did not apply in a situation where a bank had failed to provide a safe means of ingress and egress to the only entrance of its establishment as the court noted both that:  (1) it was reasonable to assume that customers could be distracted and (2) the economic burden of keeping that small area safe would not have been burdensome.  Courts have found that the de minimis rule did not apply to areas that are partially enclosed and not fully exposed to the weather as such areas can presumably be more easily monitored.

If there is evidence of an aggravating circumstance, whether the defendant owed a duty to the plaintiff becomes a question of fact.  However, if the plaintiff fails to provide evidence that such a circumstance exists, summary judgment is appropriate.

In a recent First District Appellate Court decision, Justice Epstein, explains in detail that the plain and unambiguous language of section 12.80 of the Business Corporations Act prohibits a court from extending the “grace period” for suits against dissolved corporations beyond the definite period of five years contained in the statute.

In Michigan Indiana Condominium Ass’n v. Michigan Place, LLC, 2014 IL App (1st) 123764 (decided April 24, 2014),  the third-party plaintiff alleged breach of contract and breach of implied warranties against certain corporate third–party defendants. Because both third-party defendant corporations had been dissolved, the third-party plaintiff served its notice upon the Secretary of State pursuant to section 5.25 of the Business Corporation Act of 1983 (805 ILCS 5/1.01 et seq. (West 2010)). The third-party defendants moved jointly to dismiss the third-party complaint pursuant to sections 2-619(a)(5) and (a)(9) of the Code of Civil Procedure,  arguing that, since the action against them was instituted more than five years after their dissolution, the Secretary of State was not authorized to act as the dissolved corporations’ agent under the Act, service was therefore improper, and the court lacked personal jurisdiction.  The court recounted well-established legal principles:

“A corporation can exist only under the express laws of the State by which it was created.” Blankenship v. Demmler Manufacturing Co., 89 Ill. App. 3d 569, 573 (1980). “Accordingly, the right to sue a dissolved corporation is limited to the time established by the legislature.” Id. The dissolution of a corporation is, in legal effect, the same as the death of a natural person. Markus v. Chicago Title & Trust Co., 373 Ill. 557, 561 (1940), overruled on other grounds by ABN AMRO Mortgage Group, Inc. v. McGahan, 237 Ill. 2d 526 (2010). “Under common law, a dissolved corporation could not sue or be sued.” Henderson-Smith &Associates, Inc. v. Nahamani Family Service Center, Inc., 323 Ill. App. 3d 15, 19-20 (2001). Even its pending legal proceedings would abate. Id. at 20; Blankenship, 89 Ill. App. 3d at 572.”

However, these common law doctrines had been commented on, and arguably, eroded many times over the course of time (such as in minor’s cases).  Thus, the third-party plaintiff prayed for relief from their harsh impact.  The Court commented that Section 12.80 is not a statute of limitations but, rather, a corporate “survival” statute with section 12.80 extending the life of a corporation after its dissolution so that suits which normally would have abated may be brought by and against the corporation.  It is not a statute of limitations nor a statute of repose. It is rather a statute that extends the limitations period but recognizes an endpoint to sue established by the legislature.  The court found the “end-point” to be valid even where the time to file a third-party action expires before the third-party could have discovered that it had a cause of action against the dissolved corporations.  The court ruled that “this harsh result does not allow us to disregard the plain language of the statute.”

An Illinois appellate court recently affirmed the entry of summary judgment for a general contractor sued for negligence by one of its subcontractor’s employees.  In Cain v. Joe Contarino, Inc., indiv. and d/b/a Contry Homes, Inc., of Illinois, 2014 IL App (2d) 130482, the court heard the appeal of a carpenter injured while performing work for his employer, Hawkins Construction (“Hawkins”).  Hawkins was framing a single-family home near Rockford, Illinois.  Joe Contarino, Inc. d/b/a Contry Homes, Inc. (“Contry Homes”) was the general contractor on the project.  The incident occurred while the plaintiff was setting roof trusses.  A truss came loose and the plaintiff fell to the ground, suffering injury.  The plaintiff filed suit against the general contractor, Contry, alleging that Contry failed to ensure that the plaintiff’s employer maintained safe work practices at the jobsite.

Illinois has adopted Section 414 of the Restatement (Second) of Torts, which provides an exception to the general rule that one who employs an independent contractor is not liable for the acts or omissions of the independent contractor.  Under Section 414, a general contractor that retains control over the work of its subcontractor is liable for injuries caused by the general contractor’s failure to exercise that control with reasonable care.  Contry moved for summary judgment arguing that it did not retain control over the plaintiff’s employer’s work sufficient for a duty to arise under Section 414.  Judge Edward Prochaska of the Circuit Court of Winnebago County granted Contry’s motion and the plaintiff appealed.

On appeal, the plaintiff claimed that Contry’s written agreement with the plaintiff’s employer established that Contry controlled his employer’s work, including safety on the jobsite and that Contry actually controlled jobsite safety and the means and methods of the plaintiff’s employer’s work.  The appellate court disagreed and affirmed the trial court’s ruling.  The appellate court found that Contry’s agreement with the plaintiff’s employer described the employer as a “subcontractor” that had full discretion over construction techniques, including safety.  There was also no evidence that Contry imposed any safety measures on the plaintiff’s employer or controlled the means and methods of the employer’s work on the jobsite.

(Cray Huber has prevailed numerous times on motions filed on similar grounds, including on behalf of a general contractor sued in a wrongful death action.  That motion was also heard by Judge Edward Prochaska in Winnebago County and argued by Cray Huber attorneys Michael Huber, David Kravitz, and Zachary Shook.)

A federal court sitting in Illinois recently held that neither a motor carrier which leased a tractor and driver to haul its customer’s property, nor the carrier’s lessor were entitled to insurance coverage under the lessor’s trucking policy for injuries occurring during use of the leased equipment.   In Northland Ins. Co. v. Barnhart Crane & Rigging Co., 2013 WL 685979 (N.D. Ill), the court considered federal and Illinois trucking statutes and regulations as well as case law, in rejecting all claims for coverage under the policy and under the federally-required MCS-90 endorsement on the policy.

Barnhart Crane & Rigging Co (“BCR”), the lessee, entered into a long-term lease with Diamond Ring Specialized, LLC, (“Diamond”), the lessor, for BCR’s use of Diamond’s tractor and driver. Diamond promptly removed the truck as a scheduled vehicle from its trucking policy issued by Northland Ins. Co (“NIC”), while BCR added the truck and its driver to BCR’s policy issued by Amerisure.  Kern, an independent contractor for BCR, was injured during BCR’s use of the tractor and driver, under its operating authority, to haul a customer’s crane girder which was mounted on BCR’s dolly/transport system and attached to the leased tractor.  Kern filed an action for damages against BCR and Diamond. NIC filed an action seeking a declaration that it had no duty to defend BCR or Diamond in connection with Kern’s suit.

BCR claimed that under Illinois law and the terms of the lease which stated that the driver remained Diamond’s employee, Diamond had “borrowed” BCR’s dolly such that BCR was entitled to coverage under NIC’s policy.  The court rejected this argument stating that all of federal and Illinois law as well as the lease itself require BCR to maintain “exclusive possession” and “control” over the leased vehicle and its driver, such that Diamond could not have controlled or possessed the dolly.  The court rejected BCR’s reciprocal coverage argument because even though Diamond had agreed in the lease to indemnify BCR, such indemnity agreements are void and unenforceable under Illinois law. The court further held that BCR was not entitled to notice of the deletion of the tractor from NIC’s policy under Illinois’ motor carrier insurance regulations or case law.  In a supplemental order, the court further rejected BCR’s and Diamond’s claims under the federally-required MCS-90 endorsement.

(The prevailing insurer, Northland, was represented by Cray Huber attorneys Jeanne Zeiger and James Horstman.)